Human Rights and Civil Liberties

Howard Davis

• Publisher: Willan
• Year: 2013
• ISBN:
  9781134032341
• Edition: 1
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

This book provides a wide-ranging and accessible textbook covering the main areas of civil liberties and human rights law as it applies to England and Wales, meeting the requirements of undergraduate law syllabuses.

The book sets out not only the legal rules, common law and statutes which relate to the field of civil liberties and human rights, but also the arguments and debates which have surrounded the development of an increasingly controversial area of the law, looking at the background principles underlying it, the coherence and consistency of the rules one to another and the social and political consequences of their application in practice. Particular attention is paid to the impact of developments in Europe, and especially to the Human Rights Act 1998 which has had an especial impact on the freedom to participate in determining public goals and the ability to preserve an area of personal autonomy. The book also addresses the nature and impact of the major statutory reforms in areas such as surveillance, protection of personal data and freedom of information, and devotes as well a chapter to the increasingly prominent issue of 'terrorism' and how the government and the law should respond.

Part I

Values and institutions

1

Introduction and underlying values

1.1 Introduction

A group of political demonstrators are arrested when they hold a meeting on a public road, a desperately ill man wishes to choose the time of his death, a journalist with an important story about an alleged terrorist group is faced with prison for not disclosing her source. These are examples of issues about civil liberties law. In this chapter the values that underlie civil liberties law are introduced as are the broad constitutional theories, the theories of state power, which give the law its legitimacy in relation to those values. Finally, the idea of human rights is introduced since it is in relation to that idea that civil liberties law is being restated. A principal aim of this book is to integrate human rights law into the common law and statutory rules which make up the subject.

1.2 Values: democracy and privacy

Civil liberties law is to do with the relationship between citizens and the state in so far as this relationship affects two features of social life presumed to be valuable. These two ‘features’ are, first, ‘democracy’ or the good of political participation. Civil liberties law is concerned with identifying the reasonable scope of the freedom of people to participate in political processes and seek to change or maintain the laws, government policies or public opinion. The second ‘feature’ is the idea of privacy. Civil liberties law is concerned with the reasonable scope of the claim that there is a significant part of a person’s life that should be determined by that person alone and in respect of which the state, through its laws, should have no say. From this perspective, the state also has duties, through its laws, to preserve the private part of a person’s life from improper intrusion from others, such as neighbours or the media.

The current law, which is stated in this book, represents the rules and principles on these issues which have emerged from the exercise of state power in the imperfect democracy that is the United Kingdom. Their reasonableness is the subject of the arguments that surround these rules and principles. Through these arguments, the strengths and weaknesses, the reasons for supporting, for tolerating or for rejecting the current rules can be assessed.

For some writers, democracy and privacy are so independent of each other, so much dealing with distinct and unrelated matters, that they are incapable of uniting together into a single subject called ‘civil liberties’.¹ The position, which is presumed in this book, is that civil liberties law engages with political activity and privacy in so far as they are affected by the law and by state power exercised under the law. From that position, privacy and democracy are interrelated. There is an essential aspect of ‘privacy’ underlying political activity. Political activity flows from the conceptions that individuals hold about what is good and valuable in life and what ought to be promoted or restricted in society. Such ‘conceptions of the good’ will, as a matter of fact, usually reflect the cultural traditions and the collective ways of life of the society; most people assert views that exist within a fairly narrow range of opinions and possibilities. Marxists, for example, and other cultural sociologists will explain such conformity in terms of a broadly deterministic relationship between the basic way of life in society, particularly the system of wealth production, and the values and ideas that people hold. Even if it is possible to explain in such deterministic ways why it is that people hold the views they do, it remains the case that those views are essentially theirs. A person’s views on religion, on the justification of war or peace, on the best constitutional and economic system, on the kinds of people to befriend or love and so on are important in any understanding we may have of them as persons. We can use the word ‘autonomy’ to express the idea that such views are attached to them as an important part of their personality. Our assumption about what it means to be a person is that, unlike, we believe, an animal or an object, persons have the capacity to reflect upon, choose and promote their sense of what is worthwhile and worth pursuing in life, usually for themselves, sometimes for others. This ‘autonomy’ may be true or it may be a fiction. In either event we presume it to be true. It is the presumption at the heart of moral discourse, ethics, the criminal law and, also, of the basic idea that some conception of democracy is a good the law should promote. Civil liberties law, therefore, is about the scope and dimensions of the freedom people have to seek to get their own sense of what is worthwhile adopted by society as purposes the law is to serve.

‘Democracy’ and ‘privacy’ are also linked because the claims of privacy can be the subject matter of some of the most controversial and testing political issues. People may claim that what they read or watch, how and with whom they make love, how they treat their body and so on are matters entirely for them and there is no social or political interest that justifies the intervention of the state. Similarly they may claim that information about these and other matters, such as their income, is personal and only to be used or disclosed by others under conditions that the person controls. But these claims can be contradicted by laws relating to obscenity, sexual offences, suicide and so on, and a significant degree of democratic politics involves struggles, conducted in Parliament, the courts or on the streets, about the scope of privacy that the law should recognise.

1.2.1 Democracy

Democracy is a highly contested concept.² No political theory can claim to be ‘democratic’ which does not value at least some rights to a degree of political participation.³ However, it is clear that there is significant disagreement as to the point and core extent of such rights. There are two standard views on why political participation is valued. One view values political participation and democratic principles instrumentally. It is a means of enabling people to obtain things they want for themselves or for others in society. An alternative view sees the point of participative politics not in achieving private goods but as an important part of the full expression of mankind’s social and public personality. Through political activity we not only advance personal interests but, more importantly, we express the public aspect of our nature without which we are incomplete and unfulfilled.

Whatever the purposes, there is also disagreement about the core extent of democratic participation. Political participation is valued to different degrees and to different extents. One view asserts that society as a whole is likely to be richer, more peaceful and generally more successful if decisions about the public good are taken by educated and skilled specialists in the arts of government – by political elites of one general political orientation or another. The focus is on representative institutions and practices, above all, the institutions of elections and Parliaments and the political parties that support them. The people go about their private daily lives and are for most of the time politically disengaged and passive. The core requirement for democratic participation is regular elections to choose the elites who will then govern and be the central actors of political life.⁴ Democracy as a politically passive population governed by elites recruited through representative institutions is defended not only on grounds of efficiency but also as the version of democracy that best describes the situation of political disengagement that characterises modern capitalist societies. It is interesting to note that the European Convention on Human Rights does not contain any general right of participation in public affairs but only a duty on governments to hold regular elections for the country’s legislature.⁵

For many, representative democracy, in some version or other, is inadequate.⁶ The representatives become too detached from the people they represent and too engaged with their own independent agenda and way of life. People are unable effectively to pursue their interests through the representative scheme. Furthermore, political passivity and withdrawal is seen as incompatible with the idea of full self-development and with a healthy and progressive society. On this view, a properly democratic society is one which values and gives institutional support to direct democracy. People should be able to decide directly, without the intervention of representative institutions, the issues which affect them. People should also be encouraged to develop ‘extra-Parliamentary’ forms of political action such as public campaigning, demonstrating and, if necessary, peaceful acts of civil disobedience. Such activities are not contrary to democracy but embody its spirit and purpose.⁷ Other conceptions of democracy, which also flow from a sense of dissatisfaction with simple representative politics, value and wish to expand the role of self-governing associations in governing as many aspects of our social life as possible.⁸

Disagreements about democracy can also turn on whether or not democracy requires ‘majority rule’. Majoritarian democracy authorises the law to pursue whatever ends are chosen by a majority for the time being.⁹ More usual is for ‘democracy’ to limit majorities in terms of fundamental rights of individuals, particularly individuals in minority groups of various kinds. Fundamental rights, at least to equal concern and respect,¹⁰ need to be protected. Minorities cannot be merely ignored or treated as a means to the ends of the majority.

These are all complicated matters that warrant more detailed treatment than is possible here. To say that civil liberties law deals with the reasonable scope of rights of political participation raises questions about what ‘democracy’ requires. Arguments about the law may reflect deeper arguments about the best, the most appropriate, conception of democracy that the law ought to advance. Judges faced, for example, with a prosecution of political demonstrators under public order legislation may need, perhaps, to evaluate the reasonableness of the demonstrators’ use of the highway and the reasonableness of the steps taken by the police to ensure that political protests can go ahead when measured against the freedom of the public to go about their private lives unhindered. Such evaluations will reflect the particular conception of democracy that is adhered to, consciously or by inference, by the court.

1.2.2 Privacy

The second value that partially defines the scope and nature of civil liberties law is privacy. The general idea is of some inviolable area that is, and should remain, within the control of the individual person.¹¹ This requirement derives from the broad, cultural, sense of what it means to be a person. It is the argument from ‘autonomy’. A being all of whose actions and decisions can be interfered with, who has no sphere of thought, decision and actions which cannot be so interfered with, fails the test of personhood. States must respect this and so ensure that privacy is protected in law.

In civil liberties law, privacy acts in one of two ways. One is as a kind of ‘trump’ argument. Privacy is a claim that the state should keep out of regulating a particular matter and leave it to the individuals involved. The obvious examples relate to family life and to sexual life. It is for parents, and not the state or the community as a whole, to bring up their children and lead them towards reasonable and fruitful lives. This claim is held by few, if any, in an absolute sense. There is no compelling reason why violence against spouses, usually wives, or against children is to any degree excused because they are private matters. On the other hand, there is a continuing argument on whether the state, through law, is entitled to distribute its liberties and resources in such a way as to promote particular ways of life or forms of family existence. Should the state, for example, promote heterosexual marriage over oth...